March 25, 2012

The Constitution of the United States: Is There A Role for Religion in Elections?

by Hal Gershowitz

Comments Below


One cannot begin to discuss the subject of religion in public life without first studying the First Amendment to the U.S. Constitution.  It begins with the phrase “Congress shall make no law respecting an establishment of religion . . .” the so-called Establishment Clause.

            The noted civil liberties historian Tom Head, writing in reminds us that, although Europe had been torn apart by religious conflict for almost the entirety of recorded history, the establishment clause was most likely motivated by hostility towards, and suspicion of, the Church of England.  Until 1784, there was no Anglican or Episcopal bishop in the United States.  This meant that any priest belonging to the Anglican tradition — which was the official state religion in the Virginia, Georgia, and Carolina colonies — had been ordained in London and served at the pleasure of English bishops loyal to the Crown.  By the time the American Revolution came about, Anglican priests were understandably held in high suspicion and the framers of the Constitution were reticent to create anything resembling an official Church of England in the United States.  This popular sentiment made it easy to ratify the Establishment Clause.  But what did individual framers believe?  There was considerable variation.

Some framers, such as Thomas Jefferson and revolutionary pamphleteer Thomas Paine, were rational deists who felt that the absolute freedom of conscience would invariably be threatened by any government endorsement of religion.  In an 1802 letter to the Danbury Baptist Association, then-president Jefferson wrote:  Believing with you that religion is a matter which lies solely between Man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between Church and State”.

While proponents on both sides of the religion/secular divide rationalize some degree of solace in their respective interpretations of Jefferson’s oft-quoted statement, what is unmistakable is that he chose “a wall” as his metaphor. Jefferson’s wall protected the people’s government from the interference of religion while simultaneously protecting religion from the interference of government.  It separated religion and government.  That’s what walls do. They separate and that, we believe, is exactly the point Jefferson was making.

A law school peer of presidential candidate Rick Santorum, P. Scott Russell, writing in the February 23, 2012 edition of AlterNet stated:  “Samuel Johnson famously [stated] . . . in 1775, that a false ‘patriotism is the last refuge of the scoundrel.’  Now, it appears that modern scoundrels — politicians and their puppet masters — have added another disguise to their wardrobe:  false constitutional scholarship — politicians, wrapped in the sheep’s clothing of uninformed constitutional platitudes, hoping to sway the voting masses who lack the inclination to study the Constitution themselves.  Nowhere is this more true in 2012 than with pronouncements concerning religious freedom, especially those made by my fellow law school graduate Rick Santorum.”

In 2008, Santorum claimed that America was under attack by Satan, in a “spiritual war.”  In South Carolina, Santorum left no doubt as to his desire to conform American law to the law of Santorum’s God:  “So don’t claim His rights, don’t claim equality as that gift from God and then go around and say, “Well, we don’t have to pay attention to what God wants us to do.  We don’t have to pay attention to God’s moral laws.  If your rights come from God, then you have an obligation to live responsibly in conforming with God’s laws, and our founders said so, right?”  No!  Wrong.

On Feb. 18, 2012, Santorum questioned President Obama’s Christianity, claiming that Obama’s agenda was based on “some phony theology, not a theology based on the Bible.”  Santorum went on to complain that Obama “is imposing his values on the Christian church.” James Madison, who virtually all historians honor as America’s primary constitutional architect, seemed to feel in his bones that this type of rhetoric would someday enfeeble American political discourse when he wrote on June 20, 1785 in his famous Memorial and Remonstrance Against Religious Assessments, “Who does not see that the same authority, which can establish Christianity, in exclusion of all other religions, may establish with the same ease any particular sect of Christians, in exclusion of all other sects?”

In Florida recently, he (Santorum) declined to correct a voter who called Obama an “avowed Muslim.”

Through the conflation of freedom of religion, with the more nuanced concept of freedom from religion, Republican kingmakers have schemed to sway middle-class evangelicals to rally around a Constitutional Trojan horse.

The Declaration of Independence (1776) invokes, as justification for the dissolution of the United States’ political bonds with Britain, “the separate and equal station to which the Laws of Nature and of Nature’s God entitle them . . .”

This is Santorum’s ostensible anchor: Reference to the “Creator”, which has endowed us with certain inalienable rights such as “Life, Liberty and the pursuit of Happiness”, which is the only other mention in the Declaration of Independence, of God or religion, other than an invocation of “the protection of divine Providence” in declaring independence from the British tyranny.  Reference to God and religion in the Constitution itself is even scantier:  Article VI . . . provides that “no religious test shall ever be required” for a public officer, and the First Amendment provides “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .”

We have not stated a position on who the GOP nominee should be and we won’t.  We typically express ourselves on economic issues confronting our great nation.  However, we reserve the right to take umbrage at any candidate who seeks to take liberties with the Establishment Clause by establishing his version of religion instead.

America is clearly the most religious nation in the Western world, not in spite of our separation of church and state, but, indeed, because of it.  Once again, the prescient and brilliant James Madison gifted to us his wise counsel when in his July 10, 1822 letter to Edward Livingston he wrote, “Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in showing that religion & government will both exist in greater purity, the less they are mixed together.”

American Exceptionalism, which, more than anything else, distinguished America from the rest of the world, is in large measure due to the protections the Founders built into our guiding document.  We tamper with those protections at our own peril.

By Hal Gershowitz and Stephen Porter

All comments regarding these essays, whether they express agreement, disagreement, or an alternate view, are appreciated and welcome. Comments that do not pertain to the subject of the essay or which are ad hominem references to other commenters are not acceptable and will be deleted.

Invite friends, family, and colleagues to receive “Of Thee I Sing 1776” online commentaries. Simply copy, paste, and email them this link—  –and they can begin receiving these weekly essays every Sunday morning.

5 responses to “The Constitution of the United States: Is There A Role for Religion in Elections?”

  1. Dan Newell says:

    Regarding religion and politics in America, Mr. Santorum and others might hark back to fundamentals and re-read the Catechism of the Catholic Church in particular Pt3, Sec1 Ch1 DIGNITY OF THE HUMAN PERSON which includes:

    1782 Man has the right to act in conscience and in freedom so as personally to make moral decisions. “He must not be forced to act contrary to his conscience. Nor must he be prevented from acting according to his conscience, especially in religious matters.”53

    I do not quite know what you mean in your article when you talk about the “religion/secular divide”. My world and reality includes both religion and secularism if by secularism you mean philosophy, logic, science, math, etc. Fides et Ratio – faith and reason. To have one to the exclusion of the other makes no sense to me.


    • The secular/religious divide of which we wrote refers to those who feel our public life should be secular and devoid of religious content, i.e. “Happy Holidays” instead of “Merry Christmas”, and those who feel that lack of religious conviction is a disqualifier for public office and who welcome religious observance in government affairs. We were being critical of any candidate who injects rhetoric about another candidate’s religious orthodoxy into political discourse.

  2. Chuck Anderson says:

    well written, perhaps your best to date. Sadly, the evangelicals are so blinded by the emotional intensity of their ‘faith’ they are blind to to the larger issues the framers were clearly concerned about.

  3. mark j levick says:

    Our Founding Fathers were exceptional. Their wisdom inspired generations to greatness. You brilliantly presented the historical back round of the Constitutional wall that separates Government and organized religion. While for years many thought us to be a Christian nation since the vast majority of our citizens were Christian, the Government did not require anyone to adopt Christianity as their religion and various denominations of Christianity flourished as did other organized religions. That a Catholic with no discernible record of significant achievements has seized upon the power of evangelicals within the Republican Party as a means to achieve political success demonstrates a deterioration in the wall between both Church and State and doctrinaire Catholicism and fundamentalist Christianity as well as the paucity of exceptional leaders at a critical time in our Nation’s history. I keep getting stuck on the thought that America has become so fixated on being politically correct, the promotion of diversity, the necessity of fairness and the entitlement that come with being born in the USA that we have lost sight of what made us Exceptional and the leadership that inspired us to achieve greatness. I guess I can hope for change but that’s a fallacy. In fact don’t need to change. We need to get back to the basics that made us a beacon to the World and that will take focus and leadership both of which appear to be in short supply.

  4. Dan Newell says:

    Thanks for the response; I understand your meaning. That definition of “secular/religious” appears to characterize opposites. It seems to me that the more middle ground opinions are tough to read and keep sensible sometimes because they are nuanced and complex. Not so black and white.

    David Brooks has some perceptive things to say about groups and the “others”. Our founders seemed to inherently know that forms of “tribalism” and “culturalism” along with different religious convic†iôns had to be dealt with. Smart guys.

Leave a Reply

Your email address will not be published. Required fields are marked *